Peter Michael Callaghan v Comcare

[2006] NSWDDT 25

Dust Diseases Tribunal

of New South Wales

CITATION:	Peter Michael Callaghan v Comcare [2006] NSWDDT 25
PARTIES:	Peter Michael Callaghan (Plaintiff) Comcare (Defendant)
MATTER NUMBER(S):	257 of 2004
JUDGMENT OF:	Curtis J at 1
CATCHWORDS:	Dust Diseases Tribunal :- quantum of damages
DATES OF HEARING:	26 July 2006
DATE OF JUDGMENT:	08/04/2006
LEGAL REPRESENTATIVES:	Mr G F Little SC instructed by Turner Freeman appeared for the plaintiff Mr B R Ferrari instructed by Blake Dawson Waldron appeared for the defendant

JUDGMENT:

In the Dust Diseases Tribunal of New South Wales

Matter No 257of 2004

Peter Michael Callaghan

v

Comcare

4 August 2006

JUDGMENT

CURTIS J

1. The plaintiff, Mr Callaghan, was employed as a waterside worker in Brisbane between 1960 and 1992. In the course of this employment he inhaled asbestos dust and fibre as a result of which he has contracted asbestos related diseases. The liability of the defendant to pay him damages is not in issue.

The Onset of Symptoms

2. Mr Callaghan was born on 3 November 1940 and is now aged 65. Over the past five years or so he has suffered from increased shortness of breath, fatigue and chest tightness. He becomes very short of breath walking up inclines or climbing large flights of stairs. About two years ago he ceased playing social golf because he was short of breath, lacked energy and felt fatigued after playing the game. He does not exaggerate his disabilities and says that he would be able to play golf on a dead flat course. He regularly walks on flat ground some kilometres to his club and is able to walk for about 40 minutes to an hour at a slow pace. He still mows his lawn, albeit in stages. Mr Callaghan lives alone and presently requires no care or assistance. He feels his breathing problems have deteriorated quite substantially over the last few years, he is conscious of the possibility of developing more sinister diseases, and is, understandably, frightened and depressed.

The future

3. No assessment of general damages or of future medical expenses is possible without forming some view as to future possibilities and probabilities.

4. A CT scan conducted on 1 June 2004 revealed pleural plaques, asbestos-related pleural disease and images which may represent early asbestosis. A further CT scan on 6 June 2005 confirmed progression of diffuse pleural thickening, and the appearance of changes which, in the opinion of the radiologist, most likely represented mild asbestosis.

Dr Roger Allen

5. Dr Roger Allen, a thoracic physician, examined Mr Callaghan on the 11 May 2004. It was his opinion that Mr Callaghan suffered from benign asbestos pleural disease involving moderate pleural plaques and moderate pleural thickening together with mild to moderate asbestosis without any significant reduction in diffusing capacity. Dr Allen believed that judging by the extent of the asbestosis and asbestos pleural disease the conditions would progress and start causing significant reduction in exercise tolerance in the next five years or so.

6. On 27 June 2005 Dr Allen again examined Mr Callaghan. He noted deterioration in DLCO, a measure of the lungs’ diffusion capacity, and estimated that his respiratory impairment, earlier assessed at 10 to 15 per cent, had increased to 20 per cent of the whole person. In a report of 9 July 2005 Dr Allen expressed the opinion that Mr Callaghan's life expectancy would be reduced by around five years.

7. On 7 March 2006 Dr Allen again conducted lung function tests which in his opinion confirmed a significant drop in the diffusing capacity since first measured by him on 11 May 2004. On the basis of these most recent lung function tests Dr Allen formed the opinion that Mr Callaghan's respiratory impairment was at around 25 per cent impairment of the whole person.

8. Mr Callaghan on 22 August 2005 underwent a quadruple cardiac bypass operation to relieve chest pain. This procedure has been successful, however the cardiac condition remains a threat to Mr Callaghan's health and longevity. In a report of 17 January 2006 Dr Allen said this:

I believe a fairly probable scenario is that towards the end of his life, he will end up having further problems with his heart combined with worsening lung function but probably not severe enough to cause severe respiratory failure necessitating domiciliary oxygen. The combination of heart and lung disease, particularly during the winter months, e.g. with pneumonia, pleurisy, heart failure, etc, all are a potent combination.

I do not think that he is at high risk of requiring hospitalisation for his lung disease in the near future, but over the last three to four years of his life, I believe that this probability will increase exponentially and lead to around half a dozen admissions to hospital with duration lasting from about a week to 10 days and probably longer in the last few admissions, e.g. of two weeks. Convalescence becomes more prolonged in elderly patients, particularly with other comorbidities…

in the last few years of life, he will require an increasing amount of assistance at home and this may depend to some extent on his social situation at that time. I note that he has never married and his social support, therefore, is more limited than would occur in a married man. This may involve more prolonged admissions to hospital during a convalescent period, the use of visiting district nurses, home help, meals on wheels and increased need for home maintenance suppor. These needs also may be episodic rather than continuous although in the last few years of life, it is more probable that they will be on a continuous basis.

Dr David McEvoy

9. Dr McEvoy examined Mr Callaghan for the defendant on 14 October 2004. He noted that pleural plaques and pleural thickening had reduced total lung capacity and vital capacity by 20 to 25 per cent below average normal. On 8 April 2005, after a consideration of radiographic and pulmonary function tests, Dr McEvoy expressed the opinion that the shortness of breath on exertion, and respiratory disability of Mr Callaghan would worsen, and that the lung disease was likely to contribute to or be a major cause of a reduction in life expectancy by several years, giving Mr Callaghan a life expectancy of around 10 to 15 years. Although Dr McEvoy was unsure as to whether or not Mr Callaghan had asbestosis, he agreed that there was a potential for the development of worsening pulmonary fibrosis or asbestosis which may cause increased disability. He regarded this as being a 30 per cent possible outcome.

Does Mr Callaghan suffer from asbestosis?

10. Dr Allen and Dr McEvoy do not agree as to the likely rate of progression of Mr Callaghan's disease. Part of the reason is related to the presence or absence of asbestosis. Dr Allen believes asbestosis to be present and worsening. Dr McEvoy does not believe asbestosis to be present although he allows a 30 per cent chance of its development. .

11. Dr Allen's opinion is based upon observations as to the serial deterioration in Mr Callaghan's lung function tests and his experience over many years as a Senior Staff Thoracic Physician and Clinical Associate Professor at the Prince Charles Hospital (1987 to 1995) where he set up an Interstitial Lung Disease Clinic. There can be no doubt as to the competence and wisdom of Dr McEvoy however Dr Allen would appear to have more specialised experience than Dr McEvoy in this field.

12. Because the radiologist reporting upon high resolution CT scan of 6 June 2005 thought that the appearances of the scan were "most likely" to represent mild asbestosis, and because Dr Allen detected inspirational crackles in both lung bases, a clinical finding indicative of asbestosis, I prefer the opinion of Dr Allen.

The cardiopulmonary exercise test results

13. As part of his convalescence from cardiac surgery, on 28 February 2006 Mr Callaghan underwent an exercise test which included measurements of lung function. The forced ventilatory capacity (FVC) then recorded was markedly better than the results recorded in the serial tests considered by Dr Allen which took place between 5 May 2004 and 17 March 2006. Nevertheless, at 3.81 L, the FVC demonstrated a loss of nearly 1 L from the 4.67 L recorded in 1992. Similarly the forced expiratory volume in one second (FEV1) of 2.88 L demonstrated a loss of nearly 1 L from that recorded as 3.7 L in 1992.

14. I accept the submission of Mr Ferrari for the defendant that the cardiopulmonary exercise test results of 28 February 2006 demonstrate that there has been no rapid deterioration in the period 2004 to date, and that a possible inference arises that the deterioration forecast by Dr Allen may not be as rapid as he predicts. Nevertheless in the presence of asbestosis it is certain that there will be progression at some accelerating rate and that nevertheless the progression of the underlying diseases in the absence of asbestosis is likely in the words of Dr McEvoy expressed in his report of 8 April 2005, to contribute to or be a major cause of a reduction in life expectancy by several years.

15. In a later report of 16 August 2005 Dr McEvoy appears to qualify his opinion when he said that an expected loss of a further 1 L of lung capacity in Mr Callaghan's remaining years would lead to increased symptoms and morbidity but would not lead to his death from asbestos related pleural disease. I find it difficult to reconcile this statement with the content of the earlier report. In his report of 16 August 2005 Dr McEvoy added that… I do agree that the increasing disability from breathlessness on exertion will lead to a significant further limitation in life activities and probable eventual dependence on others for the performance of daily tasks such as home maintenance, cleaning and house care.

Conclusions upon the medical evidence

16. I find that Mr Callaghan suffers from asbestos related pleural thickening and asbestosis. He is presently breathless and beset by fear. It is probable that his diseases will increasingly and remorselessly starve him of breath, disable him and cause his death. He will become ultimately dependent upon others to assist him in the everyday tasks of living and suffer the indignity of that dependence. Towards the end of his life he will probably suffer exacerbations and complications of his symptoms requiring repeated hospitalisation and convalescence.

General damages

17. Notwithstanding the probabilities, I must accept that there is a chance that Dr McEvoy is correct in his assessment that future progression of Mr Callaghan's diseases will be slow and that other illnesses will be the cause of his death. There is also a chance that Mr Callaghan will contract lung cancer or mesothelioma. The greater part of his suffering in any event will occur in the future. I assess general damages in the sum of $100,000. I allow interest on $20,000 at 2 per cent for five years: $2000.

Future hospital and medical expenses

18. The most relevant factor in the assessment of future hospital and medical expenses is the presence of or absence of asbestosis. Dr McEvoy does not believe that Mr Callaghan had asbestosis and his estimate of the cost of future medical care is predicated upon this belief. I accept that upon the evidence there is room for doubt . However, unlike future possibilities which are to be discounted by the presence of doubt, past events are determined as certain once the tribunal of fact feels actual persuasion of their existence, albeit in the face of countervailing evidence. Were it not for my finding that Mr Callaghan has asbestosis the amount allowed for future hospital and medical care would be significantly less.

19. In his report of 9 July 2005 Dr Allen estimated the total medical costs over the rest of Mr Callaghan's life upon the assumptions that he has both asbestosis and asbestos related pleural disease to be around $100,000. In a later report of 17 January 2006 the doctor estimated the total cost of inpatient care at around $80-$100000 with the total cost of outpatient follow-up care at around $10-$15000. This latter estimate made no provision for the additional cost of general practitioner and specialist attendance, radiographic and lung function monitoring, and pharmaceuticals. I incline to think that Dr Allen did not turn his mind with sufficient particularity in advancing these estimates. The doctor did however prepare a table to his report setting out in detail the probable medical expenses in relation to the care of a person suffering asbestos related pleural disease and asbestosis upon which document I proceed.

20. Discounting by 50 per cent the cost of intensive care which Dr Allen believes to be a possibility only, in addition to the cost of hospitalisation which he allows, and deferring the costs of hospitalisation, attendant professional care, and investigations in accordance with the doctors estimates of the likely time of need, the present sum at 3 per cent which represents the present cost of the provision of future medical treatment in accordance with this table is, in round terms , approximately $70,000.

21. Because of the contingency that Mr Callaghan's life will be cut short by some unrelated event, and the further contingency that the worst case scenario upon which Dr Allen has prepared his table may not eventuate, this sum must be discounted.

22. The only evidence relating to the plaintiff’ cardiac condition is that of Dr Kenneth Hossack who examined Mr Callaghan at the request of the solicitors on 3 January 2006. Dr Hossack estimated his prognosis in respect of his heart disease to be 85 per cent for a five-year survival and 65 per cent for 10 year survival. The principles in Malec v HuttonPropriety Ltd (1990) 169 CLR 638 require a discount of 35 per cent on this basis alone.

23. A further discount of 10 per cent must be allowed for the contingency of premature death from other causes and the possibility that the worst-case scenario upon which the hospital and medical expenses have been calculated does not develop. I allow $38,500 in respect of future hospital and medical care relating to Mr Callaghan's asbestos related diseases.

24. Although the plaintiff is obviously and understandably depressed, I am not presently persuaded that he will seek psychiatric intervention nor that such intervention would assist him. Nevertheless this circumstance may change in the future. I allow $5,000 against this contingency and $43,500 in total for future hospital and medical care.

Past Medical Expenses

25. These expenses have been proved in the sum of $3322.07.

Adaptive Equipment

26. These expenses have been proved in the sum of $2062.17.

Griffiths v Kerkemeyer damages

27. The present cost of future care has been calculated on the deferred tables in accordance with the assessment of the plaintiff’s needs by Ms Stephenson at $65,209.30. I discount this sum by 45% in accordance with my earlier conclusions and allow the claim at $35,865.11

Summary

28. Damages then are assessed as follows:

General damages $100,000

Interest on general damages $2000

Future hospital and expenses $43,500

Past medical expenses $3322.07

Adaptive equipment $2062.17

Future care $35,865.11

Total $184,949.35

29. Judgment for the plaintiff in the sum of $184,949.35

30. The defendant is to pay the plaintiff’s costs

Mr G F Little SC instructed by Turner Freeman appeared for the plaintiff.

Mr B R Ferrari instructed by Blake Dawson Waldron appeared for the defendant.